On The Individualization Of Rape Under International Criminal Law:Current Flaws In The Definition Of Rape And The Need For "Subordinate Criminal Responsibility"

In recent years, the issue of sexual violence and rape during armed conflict and alongside genocides and crimes against humanity has become a topic of discussion in both the legal academic world and the professional field of international criminal law. The pervasive nature of rape during conflict has recently become increasingly apparent, and various tribunals and courts have begun to adjudicate these crimes. In particular, an improved definition of rape was codified through the Akayesu trial. Nevertheless, prosecuting sexual crimes internationally is at its beginning stages, and appropriately implementing criminal responsibility is still inadequate.This thesis will first provide some background information on the history of rape in modern warfare, recent developments in the field, and relevant feminist theory. The body of this thesis will discuss the necessity of individualizing the international crime of rape, and will propose a new form of individual criminal responsibility,"subordinate criminal responsibility.’ The author will argue that the current method of prosecuting superiors for rapes committed beneath their command is completely ineffective and has a very minimal deterrent effect."Subordinate criminal responsibility" would allow for the prosecution of the rapist for his intimate attack against a woman, regardless of a superior’s role. In addition, prosecuting subordinates will create a strong deterrent effect for future armed conflicts. This unique method of prosecution will require that rape, among other sexual war crimes or crimes against humanity, require distinguishing characteristics and need to be classified separately from other crimes. Lastly, this paper will discuss the feasibility (both financially and practically) of conducting such an extensive amount of trials.